EXPLANATORY STATEMENT

 

Select Legislative Instrument 2007 No. 320

 

Issued by the Authority of the Minister for Transport and Regional Services

 

National Transport Commission Act 2003

 

National Transport Commission (Model Rail Safety Regulations) Regulations 2007

 

 

Section 52 of the National Transport Commission Act 2003 (the Act) provides that the Governor-General may make regulations, not inconsistent with the Act, prescribing all matters required or permitted by the Act to be prescribed or necessary or convenient to be prescribed for carrying out or giving effect to the Act.

 

The provisions of the Act are supported by the Inter-Governmental Agreement on Regulatory and Operational Reform in Road, Rail and Intermodal Transport (IGA), which serves to formalise the cooperative arrangements between the Commonwealth, States and Territories and define the roles and responsibilities of the National Transport Commission, the Australian Transport Council (ATC) and the jurisdictions. Clause 14 of the IGA requires the Commonwealth to submit model legislation for inclusion in schedules to regulations under the Act. The proposed Regulations would implement this commitment.

 

The Model Rail Safety Regulations are consistent with, and build on, the provisions of the Rail Safety Bill approved unanimously by the Australian Transport Council in June 2006. The Regulations form part of a broader rail reform package that aims to improve:

 

(a) rail safety performance by implementing best practice approaches to safety-based regulation; and

(b) regulatory efficiency by harmonising regulatory approaches and practices across the States and Territories.

 

In providing greater specificity of the regulatory requirements set out in the Model Bill, the regulations ensure that legislative obligations are more transparent to all stakeholders, as well as more readily enforceable.

 

The Regulations address, or provide for the future treatment of, the following matters:

 

• acceptance criteria for assessing accreditation applications (Part 2);
• statutory conditions of accreditation (Part 2);
• safety obligations specific to private rail sidings (Part 3, Division 2);
• management of safety at rail interfaces through the development and implementation of Interface Coordination Plans (Part 3, Division 3);
• minimum contents of statutory Security Management Plans (Part 3, Division 4) and Emergency Management Plans (Part 3, Division 5);
• mandatory review and revision obligations with respect to a safety management system in response to changes in the nature of the operations of the accredited party and evolution in safety management practices and procedures (Part 3, Division 6);
• prescriptive requirements that operators must adhere to such as health and fitness management programs (Part 4);
• a rail safety data collection and reporting framework (Part 5); and
• other matters of detail such as the minimum contents of statutory notices and documents that must be made available for public inspection (Part 5)

 

Schedule 1 of the Regulations provides a systematic listing of matters that need to be considered and provided for in an effective safety management system. It requires that a rail transport operator’s safety management system must provide for all of the matters listed in the Schedule that are relevant to the rail operations for which the rail transport operator is accredited, or seeking to be accredited, and must provide a level of detail with respect to each of those matters that is appropriate having regard to the scope and nature of those operations.

 

In this respect, the model Regulations are based on the content of the relevant Australian Standard (AS4292.1 Railway Safety Management Part 1: General requirements) and the National Accreditation Package and provide appropriate legislative support for them.

 

The table of fees is provided in Schedule 2 to the regulation is intended to provide guidance to as to the fees able to be charged under the Model Bill. It does not purport to, and does not in fact, establish a charging regime or methodology.

 

Matters in respect of which heads of power have been included in the model Rail Safety Bill but in respect of which regulations have not yet been prepared have been explicitly identified as being reserved.

 

The Regulations are in model form to allow for implementation in each jurisdiction using the most convenient and effective regulatory manner available – for instance, the provisions may be incorporated into the law of a jurisdiction by way of amendment of existing legislation.

 

The Regulations were prepared in consultation with the national Rail Safety Package Steering Committee and Rail Legislation Advisory Panel. The Commonwealth Government, State and Territory rail regulators, the Rail Tram and Bus Union and representatives of the rail industry (nominated by the Australasian Railways Association) were represented on the committee and panel.

 

The Regulations were exposed for a one-month consultation period, along with a draft Regulation Impact Statement (RIS) in July and August 2006. During this time they were published on the National Transport Commission (NTC) website, and circulated to key stakeholders. The NTC also conducted information seminars for government and rail industry stakeholders to promote discussion and elicit feedback from as wide a range of interested parties as possible. Sessions could not be conducted in the Australian Capital Territory, so special arrangements were made with that jurisdiction to attend sessions in New South Wales.

 

The Regulations have been endorsed by the Parliamentary Counsels Committee. The RIS has been considered and endorsed by the Commonwealth Office of Best Practice Regulation.

 

Additional details of the proposed Regulations are set out in the Attachment.

 

 

 

 

 

Attachment

 

Rail Safety (Reform) Regulations

 

Model Explanatory Memorandum

 

 

Objectives of the national rail safety laws

 

The Regulations are to be read in conjunction with the Model Bill and have been prepared to promote the Model Bill’s statutory objectives. Both laws place a high value on the effective management and control of risk, on improving safety in railway operations and on promoting public confidence in the safety of rail transport.

 

 

Key Elements

 

The Regulations continue the advances made through the implementation of the Model Bill to bring rail safety legislation in Australia into line with modern regulatory approaches to safety. Key features of the Regulations include—

• detailed guidance on the requirements for an applicant to become accredited or vary the terms of their accreditation

• statutory conditions of accreditation

• mandatory requirements for a Safety Management System

• prescribed requirements for a Safety management System to address security incidents, emergencies, and risks arising from interfaces with other road and rail operators

• obligations relating to the health and fitness, and competence of rail safety workers

• categories of accreditation fees payable by applicants and accredited persons

 

 

What is covered

 

The Regulations principally address the detailed obligations of accredited persons in the performance of their general and specific safety duties as set out in the Model Bill. They also include additional regulations stipulating essentially administrative requirements for the process of accreditation.

 

 

Mandatory conditions of accreditation

 

The NTC, in conjunction with the legislative advisory panel and associate members, identified accreditation conditions or restrictions that were appropriate for universal coverage (unless a specific exemption has been obtained). These conditions include:

 

• the time within which accreditation fees must be paid;

• an obligation to notify of adverse action taken against their accreditation in another jurisdiction;

• an obligation to notify a Rail Safety Regulator of certain critical proposals which may fall outside the scope of their accreditation.

 

Varying accreditation

 

Where an applicant wishes to vary the terms of their accreditation to carry out operations outside the demonstrated scope of their competency and capacity, the Regulations provide for mandatory information to be included in a variation application. The information required in such instances includes—

• details of the scope and nature of the proposed variation

• details of the changes that will be made to the applicant’s safety management system if the proposed variation occurs

 

 

What is a Safety Management System?

 

The Safety Management System is the means by which a rail transport operator obtains and demonstrates compliance with rail safety duties specified in Clause 28 of the Model Bill. It is both a requirement of accreditation and a means of evidencing the competency and capacity to manage risks to safety associated with the railway operations.

 

 

Specific elements of a Safety Management System

 

Schedule 1 to the Regulations sets out in detail what a Safety Management System must provide for. These include:

 

• safety policies;

• the management of risk and a Risk Register;

• governance and internal control arrangements;

• management, accountabilities, responsibilities and authorities;

• regulatory compliance.

 

Where possible and appropriate, these obligations have been stipulated as performance standards rather than prescriptive requirements. The Regulations provide also guidance in the performance of annual Safety Management System reviews required under the Model Bill.

 

 

Health, fitness and competence of rail safety workers

 

A rail transport operator is required to have a health and fitness program for rail safety workers that complies the National Standard for Health Assessment of Rail Safety Workers.

 

 

Consultation

 

The Regulations build upon the consultation obligations provided for in the Model Bill. So, when a rail operator establishes, reviews or varies a Safety Management System, the operator must provide to the Rail Safety Regulator, details of the consultation undertaken by the applicant in relation to the applicant’s Safety Management System, including —

 

• who was consulted;

• when and how the consultation occurred; and

• the results of the consultation